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UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GEORGE A. ARASIMOWICZ,
ALL PANEL SYSTEMS, LLC AND
MASSEY’S PLATE GLASS &
CIVIL ACTION NO.
JUNE 5, 2013
RULING RE: CROSS MOTIONS FOR PARTIAL
SUMMARY JUDGMENT (Doc. Nos. 58, 59)
Plaintiff George A. Arasimowicz (“Arasimowicz”) commenced this action against
defendants All Panel Systems, LLC (“All Panel”) and Massey’s Plate Glass & Aluminum,
Inc. (“Massey’s,” and with All Panel, “defendants”), his former employers. The
Amended Complaint alleges five counts.1 Counts 1 and 2 allege that the defendants
failed to pay Arasimowicz overtime pay in violation of the Fair Labor Standards Act (the
“FLSA”), 29 U.S.C. § 207. Count 3 alleges that All Panel retaliated against Arasimowicz
in violation of the FLSA. Counts 4 and 5 allege that the defendants failed to pay
Arasimowicz overtime pay in violation of the Connecticut Minimum Wage Act (the
The defendants filed a Motion for Partial Summary Judgment (Doc. No. 58) with
respect to Counts 1, 2, 4, and 5. Arasimowicz filed a Cross-Motion for Partial Summary
Judgment (Doc. No. 59) as to the same Counts.
1 The Amended Complaint (Doc. No. 46) appears to erroneously title two counts as “Count 4.”
This court will consider the first-named “Count 4” to be correct and will refer to the latter-named “Count 4”
as “Count 5.”
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STATEMENT OF FACTS
All Panel is a Connecticut Limited Liability Company consisting of four members,
including Venance LaFrancois (“LaFrancois”). Defs.’ Local Rule (“L.R.”) 56(a)1 Stmt.
(Doc. No. 58-8) ¶1. LaFrancois was Arasimowicz’s supervisor at another firm before
leaving to start All Panel. Id. ¶ 2. Sometime after All Panel was formed, Arasimowicz
informed LaFrancois that he was seeking employment. Id. On April 19, 2010,
Arasimowicz was hired by Massey’s at a starting salary of $65,000 a year, equivalent to
a base salary of $1,250 a week. Id. ¶¶ 3–4; Pl.’s L.R. 56(a)1 Stmt. (Doc. No. 61) ¶ 3.
From that date until December 31, 2010, Arasimowicz was employed on paper by
Massey’s, although he effectively worked for All Panel. Defs.’ L.R. 56(a)1 Stmt. ¶ 3;
Pl.’s L.R. 56(a)1 Stmt. ¶ 4. Starting January 1, 2011, Arasimowicz was officially
transferred to All Panel’s payroll. Defs.’ L.R. 56(a)1 Stmt. ¶ 3.
LaFrancois and another individual at All Panel, Phil Delise (“Delise”), were the
two persons responsible for the decision to exempt Arasimowicz from the FLSA and
CMWA overtime provisions. Pl.’s L.R. 56(a)1 Stmt. ¶¶ 15, 17. When LaFrancois
offered Arasimowicz a job in 2010, LaFrancois and Delise had not discussed whether it
would be legal to classify Arasimowicz as an exempt employee. Id. ¶ 16.
During the time that Arasimowicz was employed by Massey’s and by All Panel,
he had the job title of “Project Detailer/Fabrication Shop Coordinator,” and he worked
under the direct supervision of LaFrancois. Pl.’s L.R. 56(a)1 Stmt. ¶¶ 6–7. Although the
parties disagree as to what Arasimowicz’s “primary” duties were, they agree that his
duties included such tasks as drafting plans for building panels and drawing elevation
layouts for panels. Pl.’s L.R. 56(a)1 Stmt. ¶¶ 8–9; Defs.’ L.R. 56(a)2 Stmt (Doc. No. 66)
Case 3:11-cv-01894-JCH Document 72 Filed 06/05/13 Page 3 of 25
at 2. The parties also agree that Arasimowicz never took on any duties related to either
company’s taxes, insurance, or payroll. Pl.’s L.R. 56(a)1 Stmt. ¶ 10; Defs.’ L.R. 56(a)2
Stmt. at 2.
On November 17, 2010, Arasimowicz sent LaFrancois an email containing a link
to a section of the website of the Connecticut Department of Labor (the “CDOL”) that
had information regarding whether employees may be exempted from overtime
payment. 2 Pl.’s L.R. 56(a)1 Stmt. ¶¶ 19–20; Letter from Arasimowicz to LaFrancois,
dated Nov. 17, 2010 (Doc. No. 60-8) (“Arasimowicz Letter”), Ex. H to Pl.’s Mem. Mot.
Summ. J., at 1. Arasimowicz Letter at 1. LaFrancois did not call or write a letter to the
CDOL after receiving this email from Arasimowicz. Pl.’s L.R. 56(a)(1) Stmt. ¶ 24.
On September 9, 2011, Arasimowicz’s employment with All Panel ended. Pl.’s
Mem. Mot. Summ. J. (Doc. No. 60) at 5.3
STANDARD OF REVIEW
A motion for summary judgment “may properly be granted . . . only where there is
no genuine issue of material fact to be tried, and the facts as to which there is no such
issue warrant judgment for the moving party as a matter of law.” In re Dana Corp., 574
2 In the letter, Arasimowicz also states, “I feel that I should be Salary Exempt as I have mentioned
to Phil and yourself before.” It appears from his statement and from the rest of the email that
Arasimowicz inadvertently omitted a word and intended to write that he felt he should not be salary
exempt. Prior to making that statement, Arasimowicz writes LaFrancois to “please read the CT Dept of
Labor page on Salary Exempt . . . and Non-Exempt laws,” includes a link to a section of the CDOL
website with information regarding whether employees may be exempted from overtime payment, and
tells LaFrancois about a previous job where the State of Connecticut audited the company and re-
classified “detailers/designers in Engineering that were being paid as ‘Salary Exempt’ . . . as ‘Salary Non-
Exempt.” Arasimowicz Letter at 1. However, the defendants have denied Arasimowicz’s claim that he
stated in that email that “he believed he had been misclassified as exempt from overtime pay.” See Pl.’s
L.R. 56(a)1 Stmt. ¶ 19; see also Defs.’ L.R. 56(a)2 Stmt. at 4. Accordingly, this court cannot find, as an
undisputed fact, that Arasimowicz claimed in that particular portion of the email that he should not be
3 Count 3 of the Amended Complaint, which alleges that All Panel terminated Arasimowicz in
retaliation for complaining that he was improperly classified as exempt under the FLSA, is not at issue in
either motion for summary judgment.
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F.3d 129, 151 (2d Cir. 2009). Thus, the role of a district court in considering such a
motion “is not to resolve disputed questions of fact but only to determine whether, as to
any material issue, a genuine factual dispute exists.” Id. In making this determination,
the trial court must resolve all ambiguities and draw all inferences in favor of the party
against whom summary judgment is sought. See Loeffler v. Staten Island Univ. Hosp.,
582 F.3d 268, 274 (2d Cir. 2009).
“[T]he moving party bears the burden of showing that he or she is entitled to
summary judgment.” United Transp. Union v. Nat’l R.R. Passenger Corp., 588 F.3d
805, 809 (2d Cir. 2009). Once the moving party has satisfied that burden, in order to
defeat the motion, “the party opposing summary judgment . . . must set forth ‘specific
facts’ demonstrating that there is ‘a genuine issue for trial.’” Wright v. Goord, 554 F.3d
255, 266 (2d Cir. 2009) (quoting Fed. R. Civ. P. 56(e)). “A dispute about a ‘genuine
issue’ exists for summary judgment purposes where the evidence is such that a
reasonable jury could decide in the non-movant’s favor.” Beyer v. Cnty. of Nassau, 524
F.3d 160, 163 (2d Cir. 2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.
2007)); see also Havey v. Homebound Mortg., Inc., 547 F.3d 158, 163 (2d Cir. 2008)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)) (stating that a
non-moving party must point to more than a mere “scintilla” of evidence in order to
defeat a motion for summary judgment).
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1. The FLSA
Congress enacted the FLSA “to protect all covered workers from substandard
wages and oppressive working hours.” Barrentine v. Arkansas–Best Freight Sys., Inc.,
450 U.S. 728, 739 (1981), overruled on other grounds, Gilmer v. Interstate/Johnson
Lane Corp., 500 U.S. 20 (1991); see also Hintergerger v. Catholic Health Sys., No. 8-
cv-948S, 2012 WL 125152, at *5 (W.D.N.Y. Jan, 17, 2012). Under section 207 of the
FLSA, employers may not employ covered workers “for a workweek longer than forty
hours unless such employee receives compensation for his employment in excess of
the hours above specified at a rate not less than one and one-half times the regular rate
at which he is employed.” 29 U.S.C. § 207(a)(1). The FLSA also provides a remedy for
violations of its overtime provisions: employers who violate section 207 “shall be liable
to the employee or employees affected in the amount of . . . their unpaid overtime
compensation,” as well as for liquidated damages. 29 U.S.C. § 216(b).
The FLSA exempts certain categories of employees from its overtime
requirements, including “any employee employed in a bona fide executive,
administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). Such exemptions “are
to be narrowly construed against the employers seeking to assert them and their
application limited to those establishments plainly and unmistakeably within their terms
and spirit.” Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960). Moreover, the
employer typically bears the burden of proving that an employee falls within an
exemption. Corning Glass Works v. Brennan, 417 U.S. 188, 196–97 (1974) (“[T]he
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application of an exemption under the [FLSA] is a matter of affirmative defense on
which the employer has the burden of proof.”); Donovan v. Carl’s Drug Co., Inc., 703
F.2d 650, 652 (2d Cir. 1983) (placing burden of proof on employer to show that
employees were exempt “professional employees” under the FLSA), rejected on other
grounds by McLaughlin v. Richland Shoe Co., 486 U.S. 128, 134 (1988).
2. The CMWA
Like the FLSA, the CMWA requires employers to compensate non-exempt
employees for any work over 40 hours a week. Conn. Gen. Stat. § 31-76c. Also, like
the FLSA, the CMWA places the burden on the employer to prove that an employee fits
within an exemption. Butler v. Hartford Tech. Institute, 243 Conn. 454, 466 (1997).
The defendants argue that Arasimowicz qualified as an exempt employee under
two of the FLSA’s categories: administrative employees and professional employees.
Defs.’ Mem. Mot. Summ. J. (Doc. No. 58-9) at 6–9 (administrative employee), 10–18
(professional employee). The defendants also argue that Arasimowicz qualified as an
exempt employee under the CMWA’s administrative and professional exemptions.
Those exemptions mirror the FLSA’s administrative and professional exemptions and
are applied in the same manner. See Hendricks v. J.P. Morgan Chase Bank, N.A., 677
F. Supp. 2d 544, 560 (D. Conn. 2009) (noting that the administrative and professional
exemptions in the CMWA and the FLSA “parallel” each other, and further noting that
“the Connecticut Supreme Court has indicated that federal precedent can be used to
interpret Connecticut laws that are analogous to provisions contained in the FLSA”).
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Arasimowicz disputes both classifications and also argues that he was not an
exempt executive employee or computer professional employee. Pl.’s Mem. Mot.
Summ. J. at 11, 16–17.
1. Executive Exemption
An exempt “bona fide executive” under the FLSA is one: (1) who is paid a salary
of at least $455 per week; (2) whose “primary duty is management” of the employee’s
company or department or subdivision thereof; (3) who “customarily and regularly
directs the work” of at least two other employees; and (4) who “has the authority to hire
or fire other employees or whose suggestions and recommendations” regarding such
decisions are accorded “particular weight.” 29 C.F.R. § 541.100.
Arasimowicz argues that he is not a “bona fide executive” under the FLSA
because, according to his supervisor LaFrancois’s testimony, Arasimowicz “only ever
directed the work of one other employee,” and even with respect to that employee, “did
not have the power to fire him or have any input into his status as an employee.” Pl.’s
Mem. Mot. Summ. J. at 11; Deposition Transcript of J.R. LaFrancois, dated Dec. 13,
2012 (Doc. No. 60-1) (“LaFrancois Tr.”), Ex. A to Pl.’s Mem. Mot. Summ. J., at 47:22–
48:13.4 Moreover, the defendants do not appear to contest this argument in their
opposition. See generally Defs.’ Mem. in Opp. to Pl.’s Mot. Summ. J. (Doc. No. 64).
Accordingly, the court concludes that there is no genuine material issue of fact that
Arasimowicz was not an exempt “bona fide executive” under the FLSA and grants
summary judgment for Arasimowicz on that issue.
4 Exhibit A contains excerpts of LaFrancois’s deposition transcript. Portions of the same
transcript are excerpted elsewhere. See, e.g., Doc. No. 67-2, Ex. B to Pl.’s Opp. to Defs.’ Mot. Summ. J.
This court will not differentiate between the two excerpts, but will cite to “LaFrancois Tr.” whenever it cites
to either exhibit.
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2. Administrative Employee Exemption
An exempt administrative employee under the FLSA is one: (1) who is paid a
salary of at least $455 per week; (2) whose “primary duty is the performance of office or
non-manual work directly related to the management or general business operations” of
the employer or its customers; and (3) whose primary duty also “includes the exercise of
discretion and independent judgment with respect to matters of significance.” 29 C.F.R.
§ 541.200. With respect to (2), “work directly related to the management or general
business operations” must be “work directly related to assisting with the running or
servicing of the business.” Id. § 541.201(a). With respect to (3), whether an employee
exercises “discretion and independent judgment” requires a holistic assessment of the
employee’s situation, including the consideration of such factors as:
whether the employee has authority to formulate, affect, interpret, or
implement management policies or operating practices; whether the
employee carries out major assignments in conducting the operations of
the business; whether the employee performs work that affects business
operations to a substantial degree . . . ; whether the employee has
authority to commit the employer in matters that have significant financial
impact; whether the employee has authority to waive or deviate from
established policies and procedures without prior approval; whether the
employee has authority to negotiate and bind the company on significant
matters; whether the employee provides consultation or expert advice to
management; whether the employee is involved in planning long- or short-
term business objectives; whether the employee investigates and resolves
matters of significance on behalf of management; and whether the
employee represents the company in handling complaints, arbitrating
disputes or resolving grievances.
Id. § 541.202(b). There is no dispute that Arasimowicz meets the first requirement, so
this court turns to the second requirement—whether Arasimowicz performed work
“directly related to the management or general business operations” of All Panel.
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The defendants argue that Arasimowicz assisted in “running or servicing” All
Panel by “obtaining bid quotations, buying parts[,] . . . and establishing drafting
protocols for outside personnel that were being utilized by All Panel.” Defs.’ Mem. Mot.
Summ. J. at 8 (citing Resume of George R. Arasimowicz (Doc. No. 58-2) (“Arasimowicz
Resume”), Ex. A to Affidavit of LaFrancois, dated Jan. 24, 2013 (“Jan. 24, 2013
LaFrancois Aff.”) (Doc. No. 58-1), and Deposition Transcript of George Arasimowicz, Jr.
(“Arasimowicz Tr.”) (Doc. No. 58-4), Ex. C. to Jan. 24, 2013 LaFrancois Aff.).5 The
defendants also allege that Arasimowicz did other work “essential to the general
business operations of All Panel,” including creating Computer Assisted Design (“CAD”)
drawings; attending pre- and post-bid meetings; drawing fabrication tickets for the panel
assembly machine; coordinating details for and completing bills of materials for
drawings; preparing packing lists; and coordinating drawings, submissions, revisions,
and project scheduling. Defs.’ Mem. Mot. Summ. J. at 8–9 (citing Jan. 24, 2013
LaFrancois Aff. ¶ 12).
Arasimowicz argues that his primary duties at work consisted of “produc[ing]
panels and architectural drawings for [All Panel]” through the use of Computer Assisted
Design (“CAD”) software, and that such work is properly characterized as “production”
that falls outside the administrative work contemplated by section 541.202(a). The
Second Circuit has recognized the distinction between employment “belonging in the
administrative category, which falls squarely within the administrative exception, [and]
production/sales work, which does not.” Davis v. J.P. Morgan Chase & Co., 587 F.3d
5 Exhibit C contains excerpts of Arasimowicz’s deposition transcript. Portions of the same
transcript are excerpted elsewhere. See, e.g., Doc. No. 67-1, Ex. A to Pl.’s Opp. to Defs.’ Mot. Summ. J.
This court will not differentiate between the two excerpts, but will cite to “Arasimowicz Tr.” whenever it
cites to either exhibit.
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529, 531–32 (2d Cir. 2009); but see Neary v. Metro. Prop. & Cas. Ins. Co., 517 F. Supp.
2d 606, 614 (D. Conn. 2007) (stating that the distinction is relevant but not dispositive).
The distinction is based on “the nature of [an employee’s] duties, not the physical
conditions of [his] employment.” Davis, 587 F.3d at 533.
In Davis, the Second Circuit held that an underwriter tasked with approving loans
performed production work and did not qualify for the administrative exemption. The
court noted that the employee’s primary duty was to sell products rather than to advise
customers about what products were appropriate for them. Id. at 534. Accordingly, the
employee’s work related to “the ‘production’ of loans—the fundamental service provided
by the bank,” not “to setting ‘management policies’ [ ]or to ‘general business operations’
such as human relations or advertising.” Id. The court also distinguished the
employee’s work, which was “functional,” from “conceptual” work related to the bank’s
strategy, overall efficiency, or mode of operation. Id. at 535. Drawing from case law in
this and other Circuits, the Davis court noted “an important distinction between
employees directly producing the good or service that is the primary output of a
business and employees performing general administrative work applicable to the
running of any business.” Id. (emphasis added) (citing, among other cases, Reich v.
State of New York, 3 F.3d 581 (2d Cir. 1993), overruled by implication on other grounds
by Seminole Tribe v. Florida, 517 U.S. 44 (1996)).
Applying Davis’s framework to this case, this court finds no evidence to create a
genuine issue of material fact as to whether Arasimowicz’s primary duties involved
administrative, not production work. The evidence in the record shows that
Arasimowicz’s primary duty was the production of drawings for panels that would be
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manufactured by All Panel. Arasimowicz testified that his primary duty was using CAD
to draft plans for panels that were manufactured by All Panel. Aff. of George
Arasimowicz, Ex. B to Pl.’s Mem. Mot. Summ. J. (Doc. No. 60-2) (“Arasimowicz Aff.”)
¶¶ 3–4. Although the defendants allege that Arasimowicz also performed other tasks
“essential to the general business operations of All Panel,” they provide no evidence
showing that those other tasks comprised Arasimowicz’s primary duties. See Defs.’
Mem. Mot. Summ. J. at 8; see also 29 C.F.R. § 541.700 (defining “primary duty” as the
“principal, main, major or most important duty that the employee performs,” and noting
that “employees who spend more than 50 percent of their time performing exempt work
will generally satisfy the primary duty requirement”). Moreover, LaFrancois,
Arasimowicz’s supervisor, testified that, although Arasimowicz was not “merely” a CAD
designer, his primary duty was “CAD detailing.” LaFrancois Tr. at 147:15–148:4 (“Q:
[W]hat was [Arasimowicz’s] primary duty? A: He did CAD detailing as a primary.”).
Arasimowicz’s primary duty, i.e., his CAD detailing, constituted production, not
administrative, work. According to Arasimowicz, his work involved drawing lines, or
“geometry,” on a computer using a program called AutoCAD; sending the geometry to a
machine, which created a product of those cut-out lines; and using that product to
create dimensions on a blueprint for a panel. See Arasimowicz Tr. at 93:12–19. The
defendants argue that Arasimowicz’s work required “great skill, technique and
judgment” in “making certain that his plans conformed with architectural designs,” and
that his job as a draftsman was “at the core or heart of [All Panel] and critical to its
operation.” Defs.’ Mem. Mot. Summ. J. at 9. However, these arguments do not explain
why Arasimowicz’s duties should be classified as “administrative” rather than
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“production.” In fact, the defendants’ descriptions of Arasimowicz’s work—as a
“draftsman” and ensuring conformity with architectural designs, see, e.g., Jan. 24, 2013
LaFrancois Aff. ¶ 13—is the type of work “directly producing the good or service that is
the primary output of [All Panel],” and is not “general administrative work applicable to
the running of any business.” Davis, 587 F.3d at 535.
Moreover, much of the email correspondence presented by the defendants in
support of their argument illustrates that Arasimowicz’s role involved the production of
the drawings rather than a more general “running or servicing” of All Panel. See emails
attached as Ex. D to Jan. 24, 2013 LaFrancois Aff. (Doc. No. 58-5) (“Arasimowicz
Emails”) at 1 (describing work on drawings); id. at 4 (describing preparation of drawings
for production of panels); id. at 12 (discussing possible errors in dimensions in
drawings, and suggesting corrections). Even much of the “other” work that the
defendants allege Arasimowicz performed appears to relate to production of the panels
rather than to the administration of general business for All Panel. See Defs.’ Mem.
Mot. Summ. J. at 8 (listing, among other tasks, buying parts, soliciting pricing from
suppliers and manufacturers, drawing fabrication tickets, creating and coordinating
details for bills of materials, preparing packing lists, coordinating issues related to shop
drawings, and working with outside personnel involved in the production process). The
defendants’ contention that these tasks required Arasimowicz to exercise “discretion
and independent judgment,” id. at 9, does not show that those tasks involved the type of
administrative work contemplated by the FLSA. See Neary, 517 F. Supp. 2d at 615
(finding that writing estimates and negotiating repair costs with outside personnel did
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not constitute work “directly related to the management or general business operation”
of insurance company).
Because Arasimowicz did not perform work directly related to management
policies or general business operations, no reasonable factfinder could find under the
FLSA that Arasimowicz’s primary tasks constituted administrative, rather than
production, work. “Because an administrative employee must both perform work
directly related to management policies or general business operations and customarily
and regularly exercise discretion and independent judgment, . . . [Arasimowicz] was not
employed in a bona fide administrative capacity.” Davis, 587 F.3d at 537 (emphasis in
original). Accordingly, the court concludes that there is no genuine issue of material fact
that Arasimowicz was an exempt administrative employee under the FLSA and grants
summary judgment to Arasimowicz on that issue.
The administrative exemption under the CMWA applies similar standards.6
Therefore, the court concludes that there is no genuine issue of material fact as to
whether Arasimowiz is an exempt administrative employee under the CMWA, see
Hendricks, 677 F. Supp. 2d at 560, and grants summary judgment to Arasimowicz on
3. Learned Professional Exemption
An exempt learned professional employee under the FLSA is one: (1) who is
paid a salary of at least $455 per week; and (2)(i) whose “primary duty” is the
performance of work that requires “knowledge of an advanced type in a field of science
or learning customarily acquired by a prolonged course of specialized intellectual
6 The defendants concede that the language of the state regulations regarding the administrative
exemption “is very similar to the federal regulations,” and in fact has an additional requirement that must
be met. See Defs.’ Mem. Mot. Summ. J. at 20.
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instruction.”7 29 C.F.R. § 541.300–01. Requirement (2)(i)—also known as the “primary
duty test” for exempt learned professionals—includes three elements: (1) the
employee’s work requires “advanced knowledge”; (2) the advanced knowledge is in a
“field of science or learning”; and (3) the advanced knowledge is the type of knowledge
“customarily acquired by a prolonged course of specialized intellectual instruction.” Id.
The defendants argue that Arasimowicz has “acquired advanced knowledge and
a high level of skill as an ‘architectural draftsman,’ mechanical draftsman and designer[,]
and fabricator/detailer.” Defs.’ Mem. Mot. Summ. J. at 10–11. The defendants note
that Arasimowicz received a two-year diploma in “Mechanical and Electronic Design
Drafting, CAD/CAM” in 1992, during which he learned “basic drafting skills” and how to
read bluprints; and that he subsequently worked at several jobs with varying
responsibilities and requirements related to drafting and design. See id. at 11–13
(describing Arasimowicz’s professional career).
Arasimowicz argues that he is not an exempt learned professional because he
does not meet the three elements of the primary duty test. See Pl.’s Opp. to Defs.’ Mot.
Summ. J. at 13–15. Specifically, Arasimowicz argues that his work does not require a
college degree, and the fact that he took a “short, technical course” in AutoCAD drafting
does not show that his work requires advanced knowledge in a field of learning
“customarily acquired by a prolonged course of specialized intellectual instruction.” Pl.’s
Mem. Mot. Summ. J. at 14–15 (quoting 29 C.F.R. § 541.300). Second, Arasimowicz
argues that the federal regulations “specifically distinguish an exempt engineer from a
7 Section 541.300 also provides that an employee may be an exempt professional if his job
requires “invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.”
29 C.F.R. § 541.300(a)(2)(ii). Neither party argues that this exemption is at issue.
Case 3:11-cv-01894-JCH Document 72 Filed 06/05/13 Page 15 of 25
non-exempt draftsman” such as Arasimowicz. See id. at 15–16 (citing 29 C.F.R. §
541.308(b) (“The field of ‘engineering’ has many persons with ‘engineer’ titles, who are
not professional engineers, as well as many who are trained in the engineering
profession, but are actually working as . . . draftsmen.”).
This court finds that there is no evidence before it upon which a reasonable jury
could find that Arasimowicz is an exempt learned professional. The Second Circuit’s
decision in Young v. Cooper Cameron Corp., 586 F.3d 201 (2d Cir. 2009), is instructive.
There, the plaintiff, a product design specialist, had over twenty years of experience “in
the engineering field as a draftsman, detailer, and designer.” Id. at 203. His work,
drafting plans for hydraulic power units (“HPUs”), “required depth of knowledge and
experience, and entailed considerable responsibility and discretion,” and the plaintiff
“operated at the center of both the conceptual and physical processes” of the creation
and development of the HPUs. Id. at 203–04. Despite all of this, the Second Circuit
determined that the plaintiff was not an exempt learned professional because, among
other reasons, his position did not require advanced education training or instruction.
See id. at 205–06. The court noted that the phrase “customarily acquired by a
prolonged course of specialized intellectual instruction . . . makes the exemption
applicable to the rare individual who, unlike the vast majority of others in the profession,
lacks the formal educational training and degree.” Id. at 206. Accordingly, because the
plaintiff’s position required no such prolonged advanced educational training or
instruction, the plaintiff was not exempt. Id.
Here, the defendants have offered no evidence suggesting that Arasimowicz’s
position required prolonged advanced educational training or instruction. See Defs.’
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Mem. Mot. Summ. J. at 10–18. As noted earlier, Arasimowicz does not have a college
degree. See id. at 11 (noting that Arasimowicz received a diploma in CAD drafting,
where he learned “basic drafting skills”); Ex. F to Pl.’s Opp. to Defs.’ Mot. Summ. J.
(describing school where Arasimowicz received his diploma as a “technical school” that
provides “career training”); see also Zubair v. Entech Engineering, Inc., 808 F. Supp. 2d
592, 595, 598 (S.D.N.Y. 2011) (holding that plaintiff was not an exempt learned
professional despite his bachelor’s degree in engineering, because the position “does
not require a college or an advanced degree”). Even if Arasimowicz’s work required
advanced skill and discretion, as the defendants claim, that would not show why such
work would qualify Arasimowicz for the learned professional exemption, rather than
being the work of a non-exempt skilled tradesman. See 29 C.F.R. § 541.301(c); see
also Young, 586 F.3d at 205–06. Neither does the defendants’ recitation of
Arasimowicz’s twenty years of experience evidence that he should be exempt. See 29
C.F.R. § 541.301(d) (“[T]he learned professional exemption . . . does not apply to
occupations in which most employees have acquired their skill by experience rather
than by advanced specialized intellectual instruction.”); Young, 586 F.3d at 203 (noting
non-exempt plaintiff’s twenty years of experience as “draftsman, detailer, and
Two cases that the defendants cite in support of their position are also unhelpful.
The Second Circuit and other courts in this district have criticized Dingwall v. Friedman
Fisher Assocs., P.C., 3 F. Supp. 2d 215 (N.D.N.Y. 1998), where the court held that an
employee who designed electrical systems qualified for the learned professional
exemption. See, e.g., Young, 586 F.3d at 206–07 (criticizing Dingwall as an example of
Case 3:11-cv-01894-JCH Document 72 Filed 06/05/13 Page 17 of 25
a court “either misapply[ing] (or ignor[ing] altogether) the requirement that the plaintiff’s
knowledge be of the type customarily required by a prolonged course of advanced
intellectual study”); Zubair, 808 F. Supp. 2d at 599 (criticizing Dingwall for holding, “in a
single sentence and without further elaboration,” that the plaintiff’s job met the
requirements for the learned professional exemption).
The second case relied on by the defendants, Aulen v. Triumph Explosive, Inc.,
58 F. Supp. 4 (D. Md. 1944), is a non-binding case from seventy years ago and is
equally unhelpful. There, an employee of a munitions plant in Maryland was tasked with
designing “a new type of machinery not theretofore available in this country.” Id. at 6.
The court determined that development of this new machinery required the plaintiff to
engaged in “predominantly intellectual and creative” work to build the machine. Id.
Here, the record does not suggest that Arasimowicz’s work deals with similarly novel
inventions that would require specific “intellectual and creative” capabilities.
Additionally, the Aulen court does not follow the framework that the Second Circuit
provided, in Young, to determine whether work qualifies under the learned professional
exemption. See Young, 586 F.3d at 201–05.
Because Arasimowicz’s primary work—CAD detailing and drawing—does not
require “knowledge of an advanced type in a field of science or learning customarily
acquired by a prolonged course of specialized intellectual instruction,” 29 C.F.R.
§ 541.301, no reasonable jury could find that Arasimowicz is an exempt learned
professional under the FLSA. Accordingly, this court grants summary judgment for
Arasimowicz as to that issue. Additionally, because similar standards apply to the
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professional exemption under the CMWA,8 this court also grants summary judgment for
Arasimowicz as to that exemption unde the CMWA. See Hendricks, 677 F. Supp. 2d at
4. Computer Professional Exemption
An exempt computer professional is one who is paid a salary of at least $455 per
week and whose “primary duty” consists of:
(1) The application of systems analysis techniques and procedures . . . to
determine hardware, sofrtware or system functional specifications; (2) The
design, development, documentation, analysis, creation,
modification of computer systems or programs . . . ; (3) The design,
documentation, testing, creation or modification of computer programs
related to machine operation systems; or (4) A combination of the
aforementioned duties, the performance of which requires the same level
29 C.F.R. § 541.400(b). Arasimowicz argues that he was not an exempt computer
professional, because the exemption is “aimed at IT professionals whose work related
to computers per se, not at employees whose work happens to be performed using a
computer.” Pl.’s Mem. Mot. Summ. J. at 9–10 (citing Pellerin v. Xspedius Mgmt. Co. of
Shreveport, LLC, 432 F. Supp. 2d 657, 660, 665 (W.D. La. 2006)). The defendants do
not contest this argument. See generally Defs.’ Mem. in Opp. to Pl.’s Mot. Summ. J. at
13–17. Accordingly, this court grants summary judgment to Arasimowicz regarding the
exempt computer professional exemption.
5. “Combination” Exemption
This court concluded that no reasonable jury could find, based on the record
before the court, that Arasimowicz was an exempt administrative employee, because
8 The defendants concede that the language of the state regulations regarding the professional
exemption “closely follow the FLSA regulations,” and in fact has an additional requirement of “exercise of
discretion and judgment” that must be met. See Defs.’ Mem. Mot. Summ. J. at 21.
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his primary duty, i.e., his CAD detailing, constituted non-exempt production work. See,
supra, Part IV.B.2. This court also concluded that no reasonable jury could find, based
on the record before the court, that Arasimowicz was an exempt learned professional,
as his work did not qualify as exempt under the federal regulations. See, supra, Part
IV.B.3. Accordingly, a reasonable jury could not conclude that Arasimowicz is exempt
based on the “combination exemption,” which requires that an employee’s “primary duty
involve[ ] a combination of exempt . . . work.” 29 C.F.R. 541.708; see Kadden v.
VisuaLex, LLC, 2012 WL 4354781 (S.D.N.Y. Sept. 24, 2012) (permitting combination
exemption where an employee performed multiple duties that qualified under separate
exemptions and, when combined, constituted employee’s “primary duty”).
C. Arasimowicz’s Ability to Recover
Arasimowicz has also moved for summary judgment on the issue of liquidated
damages under the FLSA.9 See Pl.’s Mem. Mot. Summ. J. at 10 (citing 29 U.S.C.
§ 216(b)). Arasimowicz argues that summary judgment on this issue is appropriate
because the defendants cannot show that they acted in subjective good faith and had
objectively reasonable grounds to believe that their alleged failure to compensate
Arasimowicz for any overtime worked did not violate the FLSA. See id. (quoting
Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999)).
The defendants argue that summary judgment on liquidated damages is
inappropriate because Arasimowicz has not satisfied his prima facie burden of showing
that he actually worked uncompensated overtime, and because the defendants’
classification of Arasimowicz as exempt, even if incorrect as a matter of law, “was either
9 Arasimowicz has expressly not moved for summary judgment as to liquidated damages under
the CMWA, noting that inquiry under the CMWA is “intensely factual.” See Pl.’s Mem. Mot. Summ. J. at
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reasonable or in good faith.” See Defs.’ Opp. to Pl.’s Mot. Summ. J. at 6–10 (prima
facie case), 11–13 (liquidated damages). This court examines each argument in turn.
1. Prima Facie Case
A plaintiff bringing a FLSA claim under section 207 bears the burden of proving
that he worked uncompensated overtime. Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680, 686–87 (1946), superseded by statute on other grounds by IBP, Inc. v.
Alvarez, 546 U.S. 21, 41 (2005). However, the FLSA also requires the employer “to
keep proper records of wages, hours and other conditions and practices of
employment.” Id. at 687; 29 U.S.C. § 211(c). Where an employer fails to keep such
records, “an employee has carried out his burden if he proves that he has in fact
performed work for which he was improperly compensated and if he produces sufficient
evidence to show the amount and extent of that work as a matter of just and reasonable
inference.” Anderson, 328 U.S. at 687; see also Reich v. S. New England Telecomms.
Corp., 121 F.3d 58, 66 (2d Cir. 1997) (“When a defendant . . . fails to maintain
employment records as required by [the FLSA], an employee . . . may submit sufficient
evidence from which violations of the Act and the amount of an award may be
reasonable inferred.”) (quotation marks and citiation omitted). An employee’s burden to
produce “sufficient evidence” is low and can be met by that employee’s “recollection
alone.” See, e.g., Berrios v. Nicholas Zito Racing Stable, Inc., 849 F. Supp. 2d 372,
379–80 (E.D.N.Y. 2012); Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 336
(S.D.N.Y. 2005); Mumbower v. Callicott, 526 F.2d 1183, 1186 (8th Cir. 1975) (“The
District Court relied primarily upon plaintiff’s own recollections to determine the number
of hours she worked . . . . To do so was proper, as defendants maintained none of the
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employment records required by the FLSA, and will not be permitted to benefit from
their failure to do so.”) (internal citations omitted).
Once an employee has produced sufficient evidence of uncompensated overtime
and “sufficient evidence to show the amount and extent of that work as a matter of just
and reasonable inference,” the burden shifts to the employer to provide evidence
showing “the precise amount of work performed” or challenging the reasonable
inference drawn from the employee’s evidence. Anderson, 328 U.S. at 687–88.
Here, the defendants “did not produce records that definitively established the
number of hours worked by the plaintiff.” Tran v. Alphonse Hotel Corp., 281 F.3d 23, 31
(2d Cir. 2002), overruled on other grounds by Slayton v. Am. Exp. Co., 460 F.3d 215
(2d Cir. 2006). Moreover, Arasimowicz states that he is not moving for summary
judgment as to the issue of the amount of damages, i.e., how much overtime
compensation he is due. Rather, he is merely moving for summary judgment as to
whether there is a violation of the FLSA and whether the defendants are liable for
liquidated damages. See Pl.’s Reply Br. at 2–3; see also Brown v. Family Dollar Stores
of Indiana, LP, 534 F.3d 593, 597 (7th Cir. 2008) (“The Anderson test addresses
whether there is a reasonable basis to calculate damages, and assumes that a violation
of the FLSA had been shown.”). Accordingly, for the purposes of this Ruling, this court
need only determine whether there is a genuine issue of material fact whether
Arasimowicz worked any uncompensated overtime, and it does not need to further
inquire how much overtime he worked. See Estrella v. P.R. Painting, 356 Fed. Appx.
495, 497 (2d Cir. 2009) (concluding that failure to compensate employee for “even one
hour of overtime” establishes liability, and “[a]nything else relates only to damages”);
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see also Carmody v. Kansas City Bd. of Police Comm’rs, 713 F.3d 401, 406 (8th Cir.
2013) (clarifying that Anderson’s relaxed evidentiary standard applies where “the
existence of damages is certain” and “allows uncertainty only for the amount of
Arasimowicz has provided evidence in favor of his claim that he worked
uncompensated overtime. First, Arasimowicz testified that he “usually worked between
47 and 52 hours per week” for the defendants, but he “was never paid for any overtime.”
Arasimowicz Aff. ¶ 6. Second, Arasimowicz provided email correspondence in which he
told LaFrancois that he worked 47, 48, and 49 hours in consecutive weeks in August
2011, and to which email correspondence LaFrancois responded, “George, That is
acceptable[;] thank you.” Email from LaFrancois to Arasimowicz and Delise, dated
August 19, 2011 (“August 19 Email”), Ex. A to Pl.’s Reply in Supp. of Mot. Summ. J.
(Doc. No. 71-1). Finally, Arasimowicz apparently produced timesheets to the
defendants during discovery, several of which are annexed as exhibits to the
defendants’ papers, purporting to show overtime worked for which Arasimowicz claims
he was uncompensated. See Exs. E–M to Affidavit of LaFrancois, dated Feb. 14, 2013
(“Feb. 14, 2013 LaFrancois Aff.”) (Doc. No. 65).
As stated previously, the defendants do not have records showing how many
hours Arasimowicz worked each week. However, they have put forth evidence
challenging Arasimowicz’s claim that he worked uncompensated overtime. LaFrancois
testifies that Arasimowicz never worked any overtime. Defs.’ Opp. to Pl.’s Mot. Summ.
J. at 8; Feb. 14, 2013 LaFrancois Aff. ¶ 6 (“[P]laintiff was never asked to work overtime,
never worked overtime, never requested to be paid for overtime and never submitted
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any written documentation or purported time sheet indicating that he had worked
overtime.”). Additionally, LaFrancois testifies that Arasimowicz’s “purported timesheets
. . . are totally unreliable and proof of . . . plaintiff’s fraudulent intent.” Feb. 14, 2013
LaFrancois Aff. ¶ 9; Defs.’ Opp. to Pl.’s Mot. Summ. J. at 9–10. To support this
statement, LaFrancois spends several pages of his February 14, 2013 Affidavit
discussing apparent inconsistencies or contradictions between the timesheets and
Arasimowicz’s deposition testimony. See Feb. 14, 2013 LaFrancois Aff. ¶¶ 5–23.
This court concludes that the evidence offered by the defendants, while thin, is
sufficient to create a material issue of fact as to whether Arasimowicz worked
uncompensated overtime. First, the defendants contest that Arasimowicz worked any
overtime at all.10 Second, a substantial portion of LaFrancois’s Affidavit contests the
accuracy of Arasimowicz’s timesheets. For example, LaFrancois testified to the
following: that Arasimowicz gave conflicting testimony during his deposition regarding
when he received his work computer, Feb. 14, 2013 LaFrancois Aff. ¶ 10; that
Arasimowicz did not always enter his time contemporaneously to his work, id.; that
some of Arasimowicz’s computation about overtime allegedly worked were made after
he ended employment at All Panel, id. ¶ 11; and that there were inconsistencies
regarding certain of Arasimowicz’s time entries, id. ¶¶ 13–23. These claims are
10 The court should point out that several of the defendants’ arguments on this issue are
irrelevant. Whether Arasimowicz asked to work overtime or requested to be paid for overtime is
irrelevant. The defendants have cited no authority stating that an employee must prove that he asked if
he could work overtime or requested to be paid for overtime; nor have they shown that they “made any
effort to stop [Arasimowicz] from working overtime.” Berrios, 849 F. Supp. 2d at 388.
Nor is it relevant that the defendants were unaware that Arasimowicz was working overtime.
Although an employer is not liable for a violation of section 207 “where an employer has no knowledge
that an employee is engaging in overtime work and that employee fails to notify the employer or
deliberately prevents the employer from acquiring knowledge of the overtime work,” Forrester v. Roth’s
I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981), that is not the case here. Arasimowicz has
provided evidence showing that he told LaFrancois, at the very least, about three weeks in August 2011
where he worked overtime.
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sufficient to create a genuine issue of material fact as to Arasimowicz’s claims that he
worked unpaid overtime. Accordingly, even though Arasimowicz came forward with
evidence sufficient to shift the burden of proof to the defendants, this court cannot grant
summary judgment on the issue of whether the defendants failed to pay Arasimowicz
for overtime worked, in violation of the FLSA, because the defendants have come
forward with sufficient evidence to create a material issue of fact as to that issue.
2. Liquidated Damages
An employer who violates the FLSA is liable for unpaid overtime compensation
and “an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b).
Liquidated damages “are not a penalty exacted by the law, but rather compensation to
the employee occasioned by the delay in receiving wages due caused by the
employer’s violation of the FLSA.” Herman, 172 F.3d at 142. An employer must pay
liquidated damages unless it can show that it “acted in subjective good faith and had
objectively reasonable grounds for believing that the acts or omissions giving rise to the
failure did not violate the FLSA.” Id. Even then, the choice not to award liquidated
damages is within the court’s discretion. 29 U.S.C. § 260 (“[I]f the employer shows to
the satisfaction of the court that the act or omission giving rise to such action was in
good faith and that he had reasonable grounds for believing that his act or omission was
not a violation of the Fair Labor Standards Act of 1938, as amended, the court may, in
its sound discretion, award no liquidated damages.”). The employer’s “burden of
proving good faith and reasonableness . . . is a difficult one, with double damages being
the norm and single damages the exception.” Herman, 172 F.3d at 132. “To establish
‘good faith,’ a defendant must produce plain and substantial evidence of at least an
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honest intention to ascertain what the [FLSA] requires and to comply with it.” Reich,
121 F.3d at 71 (internal citations and quotations omitted).
Because the court did not grant Arasimowicz summary judgment as to whether
he worked uncompensated overtime, the court cannot reach the issue of whether
liquidated damages are appropriate. However, this court does observe that many of the
defendants’ arguments on this issue appear to be irrelevant to the issue of liquidated
damages. See Defs.’ Opp. to Pl.’s Mot. Summ. J. at 12–13.
For the foregoing reasons, the defendants’ Motion for Partial Summary Judgment
(Doc. No. 58) is DENIED, and Arasimowicz’s Cross-Motion for Partial Summary
Judgment (Doc. No. 59) is GRANTED in part and DENIED in part.
Dated at New Haven, Connecticut this 5th day of June, 2013.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge